The following is a video transcript.
With the holiday season upon us, many of us will travel to visit family and friends. When we do so, if we are lawfully eligible to possess firearms, we may carry to protect ourselves and our family. What if we find ourselves in a position, however, where we are traveling to visit family members who cannot lawfully possess firearms?
Georgia has a statute to prohibit felons from the possession of firearms, and in fact, classifies it as a felony in itself. Official Code of Georgia Annotated 16-11-131 provides that any person who has been convicted of a felony by a court of this state or any other state who receives, possesses, or transports any firearm commits a felony. Possession can be actual or constructive. That is the question that we have to answer or the issue that we have to address: whether your family member would actually be in possession of your firearm.
Now, if your firearm is under your possession, on your person, and in your control, you are in actual control of that firearm. But lots of times we can be found in constructive possession of a firearm as well. Let’s talk about the difference between actual and constructive possession.
A person who, though not in actual physical possession, has both the power and the intention at a given time to exercise dominion or control over a thing could then be in constructive possession of it. Constructive possession is sufficient to prove possession of a firearm by a convicted felon. If the gun is in your vehicle and it is in your side of the car, or behind your back, and there is a felon family member in the car, if it is your car and your firearm, that is your actual possession.
Now, consider if the firearm is in the passenger side door or in the glove box and the glove box is open. There are some instances where that could be considered constructive possession by your felon family member, especially if the felon knows the location of the firearm. It is a question of fact that would be determined by the trier of fact—either a judge or a jury. It can get a little confusing, but the things we have to remember; if it is in your vehicle, locked in the driveway, then that is your firearm. I don’t think there’s a problem with your felon family member being in the house.
If the gun comes in the house, that could be more problematic, but it depends on the condition and the location of the firearm. If the firearm has a lock on it or is in a locked box and is made inaccessible from all other persons except for you, then you could be the one considered in possession of it. It is not necessarily your burden to separate your felon family member or someone who cannot possess a firearm from that firearm. It is that individual’s burden. There are many cases in Georgia that address what type of evidence is sufficient to determine whether someone has possession of a firearm.
A lot of it depends. For example, if you visit a felon family member’s home, that is a big warning sign. If that’s the case, you should address these concerns—perhaps even directly if you have to. If you want to protect yourself, but also protect your felon family member or your family member who is unable to possess, be discreet. Keep it in a locked place that only you have access to. Keep it in a safe that only you have access to. Keep it in your vehicle, if that’s possible.
You can put the proper procedures in place to protect your family member and still spend quality time with that person or with that friend.